16 July 2009

"Blameless Babes"

I'm not suprised the Chief Justice's Shirley Smith address from last week is attracting quite some media attention:
> NZHerald: "Govt rules out prison amnesties to ease overcrowding "
> Stuff: "Top-judge-suggests-prison-amnesty"
Having attended the lecture, I must say it the address was, as you would expect, carefully crafted and robust. It did contain some provocative comments and ideas (particularly from the most senior member of the judiciary). But I - and, it seems, many of the audience - were generally supportive of those comments and ideas. I think the remarks were also quite timely and a counter-balance to monopolisation of this topic by the Sensible ST etc.
But assess the remarks yourself. They're now available online:
> Chief Justice Dame Sian Elias, "Blameless Babes"

Sigh. Or Bob you could have been helpful and point out my mistake without being a prat. No wonder you post as Anonymous.

And with all respect to the late Shirley Smith, but she is hardly a household name. I've researched her now, but she has never been mentioned in the NZ Herald (except in connection to Sutch), no mention on Wikipedia, and no mention in 20 years of NZPA archives. So why you would expect a non lawyer to know her name, I don't know.

"Is it appropriate for the Chief Justice to make such provocative remarks that essentially tell the government and the legislature what to do?"

If that is what she HAD done, then no. But it wasn't. So it isn't.

Read the full text at para. 42. The C.J. is pointing out that given current rates of imprisonment, there is going to be overcrowding. This overcrowding will result in safety and human rights problems. (As an aside, these problems will then come before the courts via NZ Bill of Rights Act complaints, and may well end up with compensation payments made to prisoners.) So, if the government wants to avoid a situation where its prisons create safety and human rights problems - as a good government ought to - then some sort of action will need taken to reduce overcrowding. Like amnesties. Or, if these aren't acceptable (as the C.J. recognised may be the case), then some alternative response.

This may well be a tough problem to solve. It may also be unwelcome for the government to have it brought to public attention. But it is hardly "inappropriate" for NZ's highest judge to point out that the problem exists!

I don’t have too much of a problem with the speech – its reads much better than the media takeout – but that is to be expected – they need to accentuate conflict to be newsworthy.

It’s clear the judge knew that - these parts sprung out at me:

“Crime and its punishment are pressing social and political concerns to very many more. Criminal justice is rightly the subject of close political attention. It comes to be considered in a climate of anxiety, in which professional are not trusted to have the answers.” (para [7])

“My last suggestion may be controversial. I do not know whether it is practical or politically acceptable but I think it needs to be considered.” (Para [42])

Both these statements would probably suggest that a judge should be reticent about venturing forth in this area of public policy in a public speech. None of the issues raised in the speech or the suggested solutions are novel. What the judge appears to be doing is making a personal contribution to the debate – a debate enjoying close political attention in an environment were citizens a anxious and where professionals (judges among them) are not trusted and where she does know whether some of her suggestions are practical or politically acceptable. All these factors look like a good reason for a judge not to give public speech on the issue.

If there is a NZBORA problem with overcrowding and safety with a rising prison population then it would be appropriate for the judge to “speak” via a decision in a case brought before the Court. That is how judges “speak” and shape public policy indirectly via their decisions.

If judges wish to personally enter contemporary political debates directly via spechifying then this would be a change in our arrangements. Remember their public silence is in return for deference to their branch of government and their constitutional role.

The problem with directly entering contemporary political debates as a participant is that one cannot be just a little political when it suits one whilst expecting the deference. If judges are to enter political debates with personal opinions then maybe the representatives of the citizens need more direct input into who are judges.

Course Outline

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.